Q&A: Who’s Responsible for Hidden Conditions?

Q.When we pulled off the
siding and sheathing from the gable end of an existing
house in preparation for an addition, we were surprised
to find that the roof has a 4x12 structural ridge beam
supporting common rafters. We had assumed that the roof
was framed with trusses, since the home is only nine
years old. The load from the ridge beam will need to be
carried down to a solid footing, adding about $600 of
unexpected costs to the job. Unfortunately, our
contract has no language covering such a surprise. My
question is, who is responsible for these unexpected
costs: the homeowner or the builder?

A.Patricia McDaniel, owner
of Boardwalk Builders in Rehoboth Beach, Del.,
responds: From the client’s point of
view, it is always the contractor’s fault.
At this point, you’re in the unfortunate
position of trying to close the barn door after the
horse has escaped. If you could have inspected the
attic but didn’t, the homeowners have a
good case that it isn’t their fault that
you didn’t know what was up there.

At the start of the job, it’s essential
to communicate with your client about how you will
handle hidden conditions. The following suggested
contract language comes from a sample contract in
Gary Ransone’s book, The
Contractor’s Legal Kit: "Unless
specifically included in the ‘General
Scope of Work’ section above, this
Agreement does not include labor or materials for
the following work: … correction of
existing out-of-plumb or out-of-level conditions in
existing structure. Correction of concealed
substandard framing. Removal and replacement of
existing rot or insect infestation.…" A
similar clause in your contract could have helped
protect you in your present dilemma.

The best defense against such surprises is a
good offense. Always plan ahead, and take time to
look around all the nooks and crannies of the job
site. It’s also important to charge a
professional markup, so that you can absorb the
costs arising from fights you can’t win.
Look on the bright side: The lessons learned from
this $600 surprise may help you avoid a much more
expensive misunderstanding in the future.